eDiscovery Import – Page 33 – Electronic Discovery Law

E.E.O.C. v. Forge Ind. Staffing, Inc., No. 1:14-mc-00090-SEB-MJD, 2014 WL 6673574 (S.D. Ind. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where former employee filed claim with EEOC alleging sexual harassment and retaliation, and EEOC issued a subpoena to employer staffing agency seeking information to determine how long the staffing agency had required applicants to waive statutorily protected statutes of limitations, court declined to enforce the subpoena, finding that the EEOC’s subpoena exceeded its authority in that the information sought went beyond the issues arising out of former employee?s individual charge; court further determined that the burden imposed on the staffing agency far exceeded the minimal relevance of the evidence sought, given that staffing agency processed 130,000 temporary employee applications during the time period covered by the subpoena, applications were not kept in a central repository or electronically, and compliance would require manual review of each employment application maintained in paper format at each of its ten office locations and would disrupt agency’s day-to-day operations

Nature of Case: Motion for enforcement of administrative subpoena issued to staffing agency relating to investigation of former employee’s claim of sexual harrassment and retaliation

Electronic Data Involved: Versions of employment application form used by staffing agency between January 1, 2012 and May 31, 2014, including all pages of and revisions to each form

Duluc v. AC & L Good Corp., 990 N.Y.S.2d 24 (N.Y. App. Div. 2014)

Dec 01 2014

Key Insight: Court affirmed denial of motion for sanctions where defendant preserved 84 seconds of surveillance footage in response a request to preserve footage or photos that ?depict the subject slip and fall accident? and where the remainder of the footage had been automatically overwritten before plaintiff requested broader preservation; court reasoned that: ?While it may have been a better practice to preserve any footage of the area from any camera for a period before and after the accident, that was not the request made to defendants, and it would unfair to defendant to penalize it for not anticipating plaintiff’s additional requests.?

Nature of Case: Personal injury / slip and fall

Electronic Data Involved: Video surveillance footage

Brandofino Commc’ns, Inc. v. Augme Techs. Inc., No. 652639/11, 2014 WL 302227 (N.Y. Sup. Ct. Jan. 24, 2014) (unpublished)

Dec 01 2014

Key Insight: Where parties had each produced documents in text-searchable format for review in Concordance, and defendants made later, supplemental electronic productions in several ?massive? PDF files without any metadata and abruptly refused to follow prior practice, court granted plaintiff?s motion directing defendants to produce all documents in text-searchable format with necessary Concordance load files given that plaintiff?s initial document requests specified such format, defendants? initial production was made in accordance with those instructions without any objection, and sheer volume of documents at issue required production in an accessible format that allowed for easy sorting and searching

Nature of Case: Breach of contract

Electronic Data Involved: ESI and Concordance load files

Dixon v. Experian Info. Solutions, Inc., No. 2:13-CV-227-PPS-PRC, 2014 WL 2881589 (N.D. Ind. June 25, 2014)

Dec 01 2014

Key Insight: Where Plaintiff requested production of ESI in native format and defendant failed to object (thus waiving any objection) but produced the requested data as scanned .pdfs and argued that the native format would contain the same information but would be more difficult to understand (because of shortcut codes, etc.), the court reasoned that plaintiff nevertheless requested native format to no objection and ordered that the native format be produced

Nature of Case: Fair Credit Reporting Act

Electronic Data Involved: ESI, database

Cheng v. Lake Forest Assocs., No. CBD-13-1365, 2014 WL 2964082 (D. Md. June 30, 2014)

Dec 01 2014

Key Insight: Court reasoned that ?[c]aselaw demonstrates that a contractual relationship between two parties, which privies one party to access documents or information physically possessed by the other, can be sufficient to establish the requisite control necessary to compel production of a discovery-related document[]? and found that defendant had such control over video surveillance footage in the possession of a third party and granted Plaintiff?s motion to compel

Nature of Case: Personal injury (Slip & fall)

Electronic Data Involved: video surveillance

Freedman v. Weatherford Int?l, Ltd., No. 12 Civ. 2121(LAK)(JCF), 2014 WL 3767034 (S.D.N.Y. July 25, 2014)

Dec 01 2014

Key Insight: Court considered plaintiffs? motion to compel production of ?certain reports comparing the results of the defendants document search and production in this case with? the search terms proposed by the plaintiff and with searches and productions related to prior investigations but denied the motion upon defendant?s showing that preparing only a sample report took ?several weeks, over 250 hours of vendor time, and 750 hours of computer processing time? and where plaintiffs offered ?no adequate factual basis for their belief that the current production [was] deficient? in support of what amounted to a request for ?discovery on discovery?; court acknowledged, however, that ?there are circumstances where such collateral discovery is warranted?

Nature of Case: False and misleading statements in violation of securities laws

Electronic Data Involved: ESI

Olney v. Job.com, No. 1:12-cv-01724-LJO-SKO, 2014 WL 5430350 (E.D. Cal. Oct. 24, 2014)

Dec 01 2014

Key Insight: Where plaintiff willfully and deliberately spoliated relevant data on his computer through use of deletion programs after the duty to preserve had been triggered, magistrate judge declined to impose sanction of dismissal given that the interests of expeditious resolution had not been thwarted by plaintiff’s conduct, litigation had not been unnecessarily protracted, management of the court’s docket had not been disrupted, and although the spoliation had prejudiced defendants in presenting a full defense, a strongly worded adverse inference instruction was an alternative, less severe sanction that would adequately address defendants’ harm; court set out text of adverse inference instruction to be given to the jury and awarded defendants their reasonable attorneys? fees

Nature of Case: Class action seeking statutory damages and injunctive relief for violations of the Telephone Consumer Protection Act

Electronic Data Involved: ESI on plaintiff’s computer hard drive

XL Specialty Ins. Co. v. Bollinger Shipyards, Inc., No. 12-2071, 2014 WL 295053 (E.D. La. Jan 27, 2014)

Dec 01 2014

Key Insight: Court rejected plaintiff’s complaints regarding format of defendant’s production of documents, because plaintiff failed to make any Rule 34(b)(2)(B) ESI specification in its discovery requests and defendant’s production of scanned images on OCR readable disc was a reasonably usable form; court ordered defendant to explain its document naming and numbering system to the extent it had not already done so, but denied any additional logistical relief, stating: ?Whatever burden XL and its counsel face in reviewing these materials that they themselves have requested is rightfully borne by them.?

Nature of Case: Insurance coverage

Electronic Data Involved: Database of more than 808,000 documents consisting of more than four million pages

Lawrence v. Dependable Med. Transp. Servs., LLC, No. 2:13-cv-0417-HRH, 2014 WL 2510623 (D. Ariz. June 4, 2014)

Dec 01 2014

Key Insight: Where plaintiffs supported their motion for partial summary judgment with plainly privileged e-mails between defendants and their attorneys, which defendants had inadvertently produced, court granted defendants’ motion to strike and ruled that, because plaintiffs had failed to comply with FRCP 26(b)(5)(B), they would not be allowed to use the e-mails for any purpose

Nature of Case: Fair Labor Standards Act claims

Electronic Data Involved: Privileged e-mails

State v. Otkovic, No. 20120197-CA, 2014 WL 969232 (Utah Ct. App. Mar. 13, 2014)

Dec 01 2014

Key Insight: Remanding case for retrial on other issues, appellate court found no error by trial court in admitting text messages into evidence, and discussed foundational requirements that must be met for admission of text messages

Nature of Case: Criminal

Electronic Data Involved: Text messages

Author - eDiscovery Import